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Privacy Concerns About Enhanced Driver's Licences

CONTEXT

The United States government is implementing, in phases, its Western Hemisphere Travel Initiative (“WHTI”) to strengthen border security and facilitate entry into the US by US citizens and others;

The US government is pursuing development of alternative documents to meet WHTI requirements at land and sea ports of entry and will accept proposals involving the enhancement of driver’s licenses and identification documents to satisfy WHTI requirements;

The U.S. government stipulates that to meet WHTI requirements documents must denote identity and citizenship, must be issued in a secure process and may have to include RFID technology;

Canadian citizens already have access to a well-established, highly-secure travel identification document in the form of the Canadian passport, but some may want an alternative;

On January 14, 2008, the government of British Columbia and the government of Canada entered into a memorandum of understanding respecting the British Columbia government’s Phase 1 pilot project for issuance of an enhanced driver’s licence (“EDL”) for use in establishing the Canadian citizenship of EDL holders seeking to enter the United States;

The government of Ontario has indicated its interest to the federal government in proceeding with an EDL program;

Canada’s privacy commissioners, as part of their role to comment on programs that have an impact on individual privacy rights, wish to express their significant concerns about privacy and security aspects of EDL programs;

The Commissioners call on the government of Canada and participating provinces and territories to ensure that no EDL project proceeds on a permanent basis unless the personal information of participating drivers remains in Canada, in accordance with an agreement between the government of Canada and each participating province and territory.

The Commissioners call on the government of Canada and participating provinces and territories to ensure that:

the personal information stored on or in the EDL (or the same personal information in an EDL database) can be accessed only by the Customs and Border Protection of the Department of Homeland Security (“CBP”);

the personal information described in para. 2(a) can only be accessed by the CBP when an individual presents an EDL at a United States border crossing for the purpose of seeking entry to the United States; and

the personal information described in para. 2(a) can be accessed only for the purpose of determining whether the individual should be admitted to the United States.

If any personal information of individuals who have voluntarily applied for an EDL is nonetheless transferred to the United States and housed in the United States as part of an EDL program, the Commissioners call on the government of Canada and participating provinces and territories to ensure meaningful and independent oversight of the CBP’s compliance with para. 2 and to ensure regular reporting of oversight activities and corrective measures to the government of Canada and to the Privacy Commissioner of Canada.

The Commissioners express their concern that any requirement imposed by the United States government for vicinity radio frequency identification technology (“RFID”):

permits surreptitious location tracking of individuals carrying an EDL; and

does not encrypt or otherwise protect the unique identifying number assigned to the holder of the EDL and would not protect any other personal information stored on the RFID,

and call on the Government of Canada and participating provinces and territories to take steps to ensure the security of personal information stored on EDL RFID tags and to prevent the possibility of surreptitious location tracking.

The Commissioners call on provincial and territorial governments to:

ensure that individuals participate in an EDL program on the basis of informed consent, with full disclosure to individuals of all privacy-related matters before they consent;

ensure that robust privacy and security are built into all aspects of EDL projects, including by conducting thorough privacy impact assessments and threat risk assessments at the outset;

ensure that their EDL programs comply with applicable local privacy legislation; and

consult early and meaningfully with their privacy commissioner or other responsible privacy oversight official on all aspects of any contemplated EDL program.

The Commissioners acknowledge that a certain objective of EDL programs is to provide an alternative document for proving Canadian citizenship, but, recalling that citizenship verification at international borders is currently verified by presentation of a Canadian passport:

declare that any EDL program requiring verification of citizenship by provincial or territorial government agencies would duplicate that federal function at great expense for taxpayers; and

observe that this duplication would create yet another database of personal information, thus unnecessarily increasing privacy risks for participating citizens.

The Commissioners express their continued opposition to national identity cards and systems.